133 Mich. App. 335 | Mich. Ct. App. | 1984
Defendant was charged in Van Burén County with felonious assault, MCL 750.82; MSA 28.277, and possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). Defendant’s motion for a severance was
Defendant appeals as of right from his felonious, assault conviction. A separate appeal is being pursued on the felony-firearm conviction.
The complainant testified that around midnight on April 23, 1981, two men attempted to force him into the trunk of a parked automobile. A struggle ensued, and the complainant was struck with a shotgun carried by one of the men. The other man carried a pistol and tried to handcufF the complainant. The complainant broke away, and the pistol was fired twice as he fled.
The Covert Township police were notified of the incident, and the description of the men and their vehicle was broadcast to police officers in the area. Two Michigan state police officers later stopped the vehicle which defendant was driving and satisfied themselves that defendant and his companion matched the description of the persons involved in the Covert Township incident.
After a search of defendant’s car, a shotgun was discovered in the trunk. At that point, defendant and his companion were arrested.
The complainant was brought to the scene of the arrest. He identified defendant and his companion. Although he had seen both defendant and his companion on several occasions, he had not been able to identify either at the time of the assault.
Defendant first contends that the trial court
A trial court’s determination on a motion to suppress evidence will only be reversed if it is clearly erroneous. People v Siegel, 95 Mich App 594, 602; 291 NW2d 134 (1980), lv den 414 Mich 900 (1982).
The testimony given by defendant and the two state troopers involved in the stop and search was consistent in several respects. All agreed that defendant and his companion were ordered out of the car at gunpoint, were spread-eagled against the front of the vehicle, and were patted down for weapons. Trooper Hellenga testified that defendant appeared nervous, but acknowledged that this is a normal reaction for a person with a gun trained on him. Defendant confirmed that he was nervous.
In other crucial respects, the testimony diverged. Trooper Hellenga stated that defendant consented to a search of the vehicle after learning that he was a suspect in a recent kidnapping and assault and after being informed that he had the right to refuse the vehicle search.
Defendant stated that he did not consent to the search. He admitted that when he was asked by the troopers for permission to search the trunk, he told them there was nothing he could do to stop them. He stated that normally he would have insisted on a search warrant, but the troopers’ behavior caused him to be concerned that he would be shot if he did not submit to the troopers’ request. He further stated that he had independent knowledge of his right to refuse the troopers’ request to search.
Defendant relies on People v Raybon, 125 Mich App 295; 336 NW2d 782 (1983), in which this Court found that there had not been valid consent to search. There, three police officers with drawn guns opened up the door of the residence in which they believed the suspects were located and asked the owner of the house if they could enter. The owner simply stepped back, and the officers entered the house. This Court found mere acquiesence to authority rather than the consent to search. It is clear, however, that there is no per se rule that drawn service revolvers vitiate an otherwise valid consent to search. In People v Carpenter, 120 Mich App 574; 327 NW2d 523 (1982), this Court found a valid consent to search where officers, with drawn service revolvers, announced their presence and their desire to speak to the owner of an illegally parked Cadillac, and defendant opened the door, looked at the police, closed the door, removed the security chain lock, and opened the door for the police to enter. Cf. People v Sangster, 123 Mich App 101, 104; 333 NW2d 180 (1983). (Drawing a gun during an investigative stop does not necessarily transform the stop into an arrest.)
Although this case differs from Carpenter, in that here defendant was spread-eagled against the front of his car, while in Carpenter the defendant was harbored in the safety of his home, we do not find that this difference necessarily vitiated defen
It is next asserted that the victim’s on-the-scene identification of defendant’s companion violated defendant’s constitutional right to counsel. Defendant did not object to testimony concerning this identification at trial. Therefore, appellate review is precluded absent manifest injustice. People v McMillen, 126 Mich App 211, 219; 336 NW2d 895 (1983). We find no manifest injustice, particularly as defendant is attempting to assert the rights of his companion.
Defendant’s last claim on appeal is that the trial court erred in refusing to correct the judgment of sentence to reflect that his sentences for arson and felonious assault are to run concurrently. This issue arises because of the highly unusual circumstances by which defendant was separately tried on the felony-firearm and felonious assault charges. Judge Warshawsky, who presided over the felony-firearm trial, sentenced defendant to serve two years imprisonment on the felony-firearm conviction. Because defendant had committed the felony-firearm offense while he was on bond in
In light of the fact that Judge Warshawsky ordered that the felony-firearm sentence be served consecutively with the sentence for the arson, and because MCL 750.227b(2); MSA 28.424(2)(2) requires the sentence for a felony-firearm conviction to be served "consecutively with and preceding any term of imprisonment imposed” for the underlying felony, defendant became concerned that he would have to serve three consecutive sentences for the convictions for arson, felony-firearm, and felonious assault respectively. Consequently, defendant moved for clarification of his sentence for felonious assault before Judge McCauley. Judge McCauley concluded that Judge Warshawsky’s decision to make the felony-firearm sentence consecutive to the arson bound him and necessarily made all three sentences consecutive. Consequently, he declined to give defendant any relief.
In our opinion, defendant must first serve his felony-firearm sentence and, upon expiration of that sentence, his sentences for arson and felonious assault will run concurrently. Both Judges Warshawsky and McCauley had the option, pursuant to MCL 768.7b; MSA 28.1030(2), to impose
Under the circumstances of this case, the felony-firearm sentence must be served consecutively with and prior to the arson sentence. The arson and felonious assault sentences will thereafter run concurrently. This serves to facilitate two important principles of sentencing: (1) that the judge who presided over the defendant’s trial shall have the discretion and the authority to pass sentence upon that defendant,
Affirmed except as to sentence. Defendant’s felony-firearm sentence shall be served preceding and consecutively with the arson and felonious assault sentences. The arson and felonious assault sentences shall run concurrently. It is so ordered.
Judge Warshawsky’s decision to make the felony-firearm and arson sentences consecutive will probably have little effect on the total time defendant serves in prison. If, however, the parole board determines that defendant is a bad risk, he could be held as long as 12 years, instead of 10 years which would be defendant’s maximum time in prison had Judge Warshawsky not made the felony-firearm and arson sentences consecutive.
This rule is subject to exceptions. Por instance, if, on appeal,